In its decision filed on September 24, 2015, the Supreme Court of the State of Washington (“Washington Supreme Court”) reversed summary judgment granted to the defendant doctors (dentists) in a Washington medical malpractice case. The trial court had struck a late-filed affidavit of the plaintiffs’ medical expert and thereafter determined that the two timely filed affidavits from the plaintiffs’ medical expert failed to connect his opinions to specific facts to support the contention that the defendant doctors’ medical treatment fell below the standard of care.
The Alleged Underlying Facts
The defendant doctors had performed sleep apnea surgery on the plaintiff on November 26, 2007 that involved cutting bone on the upper and lower jaws to advance them, thereby opening airway space to improve her breathing, after which the plaintiff suffered complications (pain, swelling, and an infection in her jawbone, as well as loose bone and hardware that required surgically grafted bone and new hardware to be installed, causing her to suffer chronic pain, swelling, fatigue, nerve sensations in her eye, an acrid taste in her mouth, and numbness in her cheek and chin).
The Court of Appeals Decision
The intermediate appellate court, the Court of Appeals, determined that the trial court should have excused the late filing or granted a continuance to consider the third affidavit. The Court of Appeals therefore reversed the trial court’s summary judgment order, holding that the third affidavit showed a genuine issue for trial (but affirming the trial court’s conclusion that the second affidavit lacked specific facts to defeat summary judgment).
The Washington Supreme Court Decision
The Washington Supreme Court stated that the decision to exclude evidence that would affect a party’s ability to present its case amounts to a severe sanction and before imposing a severe sanction, the court must consider the following three factors: whether a lesser sanction would probably suffice, whether the violation was willful or deliberate, and whether the violation substantially prejudiced the opposing party.
The Washington Supreme Court noted that the three-factors analysis was previously used only when severe sanctions are imposed for discovery violations, but the Washington Supreme Court concluded that the analysis is equally appropriate when the trial court excludes untimely evidence submitted in response to a summary judgment motion.
In the present appeal, the Washington Supreme Court stated that after striking the untimely filed expert affidavit, the trial court determined that the remaining affidavits were insufficient to support the contention that the defendant doctors’ actions fell below the applicable standard of care, essentially dismissing the plaintiffs’ claim because they filed their expert’s affidavit late. However, the Washington Supreme Court stated that its overriding responsibility is to interpret the rules in a way that advances the underlying purpose of the rules, which is to reach a just determination in every action.
The purpose of summary judgment is not to cut litigants off from their right of trial by jury if they really have evidence which they will offer in a trial: the purpose of summary judgment is to carefully test this out, in advance of trial, by inquiring and determining whether such evidence exists.
The Washington Supreme Court held that a ruling to exclude is reviewed for an abuse of discretion and, in this case, the trial court abused its discretion by not considering the three factors stated above before striking the third affidavit, aside from noting that the trial date was several months away, which tended to reduce the prejudice to the defendants (the trial court made no finding regarding willfulness or the propriety of a lesser sanction). Therefore, the Washington Supreme Court reversed the order striking the third affidavit.
The Washington Supreme Court also held that the plaintiffs’ second affidavit from their medical expert created a genuine issue of material fact: when taken in the light most favorable to the nonmoving party, the plaintiffs’ expert affidavit establishes the applicable standard of care and that the defendants breached it, and that these violations proximately caused the plaintiff’s injuries within a reasonable degree of medical certainty (i.e., the testimony could sustain a verdict for the nonmoving party).
Source Keck, et al. v. Collins, et al., No. 90357-3.
If you or a loved one suffered a serious harm in Washington State due to medical negligence, you should promptly find a Washington medical malpractice lawyer who may investigate your Washington medical malpractice claim for you and represent you in a Washington State medical malpractice case, if appropriate.
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